Legal Commentary

A student and I have been fighting over United States v. Verdugo-Urquidez -- the 1990 Supreme Court decision that is cited for the proposition that the Fourth Amendment categorically does not apply to non-citizens outside the territorial United States.  I have long read Chief Justice Rehnquist's opinion in that case as only being for a plurality, at least with respect to that specific holding. My student rightly pointed out that no one on the Court seemed to treat it that way, including the reporter, who didn't make the normal notations that signify a plurality opinion. And Justice Kennedy seems to share this view, given that his concurrence (which, in my view, is only a concurrence in the judgment) expressly says "Although some explanation of my views is appropriate given the difficulties of this case, I do not believe they depart in fundamental respects from the opinion of the Court, which I join."

In a nutshell, here's my argument: Kennedy's concurrence only concludes that "the Constitution does not require United States agents to obtain a warrant when searching the foreign home of a nonresident alien." His analysis, as his opinion makes clear, is quite distinct from the categorical approach to the question that Rehnquist undertakes (moreover, he, unlike Rehnquist, doesn't over-read Johnson v. Eisentrager). Given that, isn't it more accurate to read Verdugo as only holding what Kennedy said, i.e., that the Warrant Clause doesn't apply to searches of the foreign homes of nonresident aliens? That would leave open the possibilities that (1) the rest of the Fourth Amendment applies to such searches; and (2) the Warrant Clause applies in other contexts. Although I suspect a negative answer to (2) would also follow from Kennedy's analysis, (1) strikes me as a serious issue, and one for which there were only four votes in Verdugo.

So does form or function govern when deciding whether a particular holding is for a plurality or a majority? If it's function, I feel pretty good about my argument. If it's form, doesn't that give a lot of power to the Supreme Court's Reporter of Decisions, or, at the very least, to the Justice in the middle, who may not want to highlight the depth of his disagreement(s) with the majority?